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[ See U.C.C. § 2-207(1) (1951); 2 Anderson U.C.C. § 2-207:26 (3d. ed.), Westlaw (database updated Dec. 2020).]
4. Result if the Parties’ Writings Do Not Form a Contract Even if the parties’ writings do not form a contract under the abovementioned rules, the parties will oftentimes go ahead and perform as though they have a contract. If they do, then this conduct establishes a contract, despite the writings. The contract’s precise terms will be (1) those on which the parties’ writings agree, plus (2) any other terms supplied by any relevant gap-filling or other provisions of the UCC. The result: contradictory terms in the respective writings cancel each other out, and the UCC itself supplies any relevant, missing terms. [ See U.C.C. § 2-207(1), (3) (1951); 2 Anderson U.C.C. § 2-207:26 (3d. ed.), Westlaw (database updated Dec. 2020); Gap Fillers, infra .] Example : An automobile manufacturer ordered several engines from a supplier. The manufacturer’s order form included robust warranties to bind the supplier. The supplier responded with its own acknowledgement form that disclaimed all warranties and stated that the supplier would accept the order only if the manufacturer agreed to all terms in the acknowledgment. The parties exchanged no further pertinent writings but began performing. Indeed, the manufacturer bought many engines from the supplier. Here, the parties’ writings did not form a contract. The supplier’s acceptance was expressly conditioned on the manufacturer’s agreement to the acknowledgement’s terms, and the manufacturer never indicated acceptance. Even so, the parties started performing as though they had a contract. This conduct, then, created a contract. This contract’s terms did not include any warranties, because the writings contradicted each other regarding warranties. Thus, the UCC’s gap- filling provisions, including those creating implied warranties, supplied the relevant warranties. [ See Dresser Indus., Inc., Waukesha Engine Div. v. Grandall Co. , 965 F.2d 1442 (7th Cir. 1992).] 5. Whether Additional Terms Become Part of the Final Contract An additional term is one that supplements, or adds to, the offer’s terms, but does not contradict the offer’s terms. A different term is one that varies or contradicts the offer’s terms. Assuming the parties’ writings establish a contract under § 2-207, it must be established which, if any, of the additional or different terms in the acceptance or confirmation become part of the final contract. Additional terms are treated as proposals for inclusion in the contract. The precise rules for whether these terms become part of the contract depend on whether the transaction is between merchants. The UCC does not specify the proper treatment of different terms, as opposed to additional terms, leaving the courts to wrestle with this issue. [ See U.C.C. § 2-207(2) (1951); 2 Anderson U.C.C. § 2-207:104 (3d. ed.), Westlaw (database updated Dec. 2020).]
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